Copyright 2015 by John T. Reed
This is a Focobook post and subsequent comments.
As I previously noted—and we had all the arguments submitted as comments—Ted Cruz is not a “natural born U.S. citizen.” He was born in Canada. The Constitutiton says only “natural born citizens can be president and it means something because it is the only office for which that is a requirement. I do not see how he can be considered a candidate until there is some ajudication by the U.S. Supreme Court that he meets that requirement. Arnold Schwazenegger was talked about as a president but it was dismissed because he was born in Austria. Don’t start reciting the legal arguments to me again.
Tell it to the judge—or more precisely, the nine Justices.
Stephen Tobey If you really want a court to rule about it, run against him and sue to have him taken off the ballot. There has to be an actual case before there can be a ruling.
Stephen Harclerode He was an automatic US citizen at birth due to his mother's citizenship, which I thought met the requirement of being 'natural born.' But it would be to the nation's benefit to have a Supreme Court case solidly define the term.
Irony alert: Cruz wins but Obama refuses to hand over the reins so as to preserve the integrity of the office and assure that we don't have a POTUS lacking the constitutional citizenship credential.
Stephen Harclerode According to the Wikipedia page for "Natural born citizen clause, " they quote a 2011 Congressional Research Service report that says "The weight of legal and historical authority indicates that the term "natural born" citizen would mean a person who is entitled to U.S. citizenship "by birth" or "at birth," either by being born "in" the United States and under its jurisdiction, even those born to alien parents; by being born abroad to U.S. citizen-parents; or by being born in other situations meeting legal requirements for U.S. citizenship "at birth." "
Of course this is not authorative like a Supreme Court ruling would be.
Frank Evans Arnold S was born outside the US and his parents were not U.S. citizens. But Ted C's mom was born in the US, so that would make him a US citizen right ? I mean if I were stationed overseas in the military or any job and my wife and I had children there, they'd still be US citizens at birth due to one or both of their parents being US citizens. Different scenario between Arnold and Ted.
Frank Evans How insane would it be if two US citizens who had a kid abroad (because they were working or on vacation there) did NOT get "naturally born" US citizenship for their kid, but two illegal immigrants could have a kid in Nebraska and have their kid be a "naturally born" US citizen?
Mark Christoph My sister was born in a US military hospital in Germany - my father was naturalized at the time, my mother was a German citizen. My sister was not born a citizen and had to be naturalized also. So being born to a naturalized citizen on ostensibly American territory was not sufficient. My parents had the same citizenship status when I was born, but I was born in a military hospital in CA, so automatically a citizen for me.
Frank Evans Mark - you say your father was naturalized at the time, which I understand to mean that he had been a foreign national who had become a US citizen trough the naturalization process. Would your sister have had to go through the naturalization process if your dad had been a US citizen at birth?
Mark Christoph I don't know. The question here is whether one parent being a citizen or being born on US territory is sufficient, but in this case, apparently not. John McCain was also born in a military hospital overseas, but his father was a natural born citizen, so apparently that's the key - one parent being natural born at least, not just naturalized - or being born on US soil.
John T. Reed If Cruz runs and wins, Democrats will sue and the U.S. Supreme Court will decide whether he can remain president. If not, his VP would become president, not the losing Democrat. Some of the above arguments would be in the pro-Cruz briefs. Others are just childish whining about what the law OUGHT to say. The fact that McCain won the 2008 Republican nomination means nothing because the U.S. Supreme Court did not rule on whether he was eligible to be president.
When the Constitution was written, a high percentage of Americans were born in the U.K., from whom we had just won a bitter independence. During the Revolutionary War, Canada was the enemy. It appears to me that legislative intent—which courts consider in cases of ambiguity—was that the president should be chosen from among only those born here. All this talk about naturalization and parents in the military being stationed abroad and American mothers giving birth while traveling abroad for the fun of it refers to things that did not start to happen until many years after the Constitution was adopted. I don’t even think pregnant women appeared in public back then, let alone engaged in international tourism when they were nine months pregnant.
I think the Founding Fathers would be amazed to hear these interpertations of the “natural-born” phrase. The very word “naturalization” suggests turn what was not natural into what is natural which begs the question of why they would use the phrase “natural born” only for the president to begin with. They use the word citizen, which includes both natural born and foreign born. for the House and Senate. The very idea of American military personnel being stationed abroad with their wives and having babies was absolutely beyond their comprehension as either something the U.S. could do or would ever want to do. Ambassadors, maybe. And the casual sort of travel for fun by pregnant women that is common in the jet age was not a part of the age of horses and sail. Such things would have been wild science fiction in 1789.
Harclerode is correct. The matter is so important that it needs to be clarified by a Constitutional amendment. A declaratory judgment by the U.S. Supreme Court would be a sensible, common-sense solution, but I think one of the lawyers who comments on this wall said the Supreme Court has no authority to issue declaratory judgments. Finding out that Cruz was not qualified after he got elected would be a profound waste of time, energy, and money and leave the sort of never-ending bitterness that we got after the hanging-chad Bush victory in 2000. We currently have four Democrat party hacks on the Supreme Court. We may get another before Obama’s done. They may reject a Cruz presidential victory just to hurt Republicans and ignore all the legal arguments.
The Democrat nominee could issue a pledge not to challenge if Cruz won the election. It would not be legally binding on every leftie, but it would reduce the hatred of a party that undid the will of the voters on a technicality through a suit filed by a fringe Democrat.
I fear we are going to get what we got with McCain—an entire election cycle where no one but fringe kooks mentions the natural-born issue until the foreign-born guy wins. We were only spared that Court case in 2008 because of Obama winning.
The XIV amendment is irrelevant. The “natural born” language is in Article II Section 1 of the original unamended Constitution.
I just saw Cruz address this on Hannity. He says he is a “natural born” citizen because his mom was a citizen. He and Megyn Kelly say “the courts” have held this.
I am not a lawyer, but I write law books for a living and I have represented myself in 8 or 10 litigations, some lasting for years. So I think I know enough about this question.
The Supreme law of the land is the Constitution. It says he has to be a “natural born” citizen. Laws often define terms that they use like that, but the Constitution did not define this one. Thus we have an ambiguity.
That means the interpretation will be up to the U.S. Supreme Court. Cruz and Kelly say “the courts” have already spoken. Maybe some lower courts have in other contexts, but as far as I know, NONE has heard such a case with regard to the presidency, and even if one had, the only court that is “controlling” on the entire nation is the U.S. Supreme Court.
I am not predicting how the U.S. Supreme Court would decide the case. I am simply telling you unequivocally that the U.S. Supreme Court has NOT YET decided it and as a result of that, the Republican Party is, at least, risking having their nominee replaced by their VP nominee after the election.
Is there a chance that the Supreme Court might decide in between the election day and inauguration day and say that the second-place presidential candidate—the Democrat—thereby wins? Yes.
The fact that some lower courts may have addressed the phrase in other contexts neither controls nor predicts the Supreme Court’s decision on the matter.
If the Republicans nominate Cruz, they are rolling the “natural born” dice. They chose a far more sensible solution with Schwarzenegger. In the absence of a Constitutional amendment saying persons born abroad can serve as president, nominating such a person is out of the question. So Schwarzenegger stood down.
I really don’t want to discuss it anymore until the U.S. Supreme Court decision unless a lawyer among my readers has a controlling citation to offer. I will also allow in this case what I do not normally allow, that is an “Amen” type comment from a lawyer.
Van Hardenbergh As a lawyer, I can give a qualified "Amen". It sounds like a gamble, and it exposes the GOP to getting hoist on it's own petard based on birther arguments, at least among the Hollywood media. I have nothing in particular against this candidate. I think Condi Rice is a no-brainer who could ignite the GOP and take back a lot that Obama has given away...
John T. Reed Harrold quotes the Naturalization Act of 1790. Ditto the Naturalization Act of 1795. Neither is controlling. Each may have been unconstitutional. You have to have a Constitutional Amendment or a U.S. Supreme Court decision to define the phrase “natural born.”
He also quotes English law. Put that in your brief with regard to Founding Fathers’ intent, but it is not controlling.
Re my son Dan: A couple of people have used this “there are only two choices: natural born or naturalized.” I’m not buying that. Dan’s mom, my wife, was born in Indonesia and neither natural born (if that means born on U.S. soil) nor naturalized. She was instantly a U.S. citizen because her parents were both citizens—they both happened to be natural born if that means born on U.S. soil.
Cruz also noted three Republican candidates who were born abroad—McCain, Romney’s father, and Goldwater. So? None of them got inaugurated.
I guess I was dreaming to expect an unqualified “Amen” from a lawyer. They are trained to be able to argue both sides of every case. Again, I am not predicting the decision, or even arguing what it should be as many others have, only noting that neither the necessary amendment nor the controlling court decision has happened.
Randy Harrold I didn't say they were controlling, they just can be used to determine the intent of the natural born citizen, and yes that is the kind of stuff that ould go into a brief. The statute Dan quoted is the statute that controls.
Van Hardenbergh Well, you should not expect an unqualified "Amen" from any lawyer who is not a fool. Supreme Court decisions don't follow the law or accurately express what that law is - they follow the personal preferences of five or more justices who vote a certain way and then craft the most contrived legalese tripe in order to justify it.
John T. Reed One other consideration, this Sword of Damocles hanging over Cruz may adversely affect his campaign for the nomination and adversely affect his general election campaign if he wins the nomination. When Hillary used it against Obama she was certainly trying to cost him primary votes and delegates to the convention. In other words, it could cost the Republicans the presidency on election day regardless of whether they did not lose a Supreme Court decision AFTER the election.
Randy Harrold Van Hardenbergh is abloslutely right (and I will give that an unqualified amen), To me this seems like a simple logical exercise of applying the facts to the statute, but that doesn't mean a judge would see it that way.
John T. Reed Now I’m disagreeing with the lawyers. It is NOT a matter of applying the facts to “the statute” because the boss of all statutes—the Constitution—is ambiguous. The statute Dan quotes is A statute but it’s not THE statute.
It is a matter of defining the ambiguous term “natural born” and that is a fairly complex matter of analyzing Founding Father intent using stuff like English law and dictionaries from 1789, but NOT using definitions in statutes that POST dated the Constitution. If a statute that postdates the Constitution defines the phrase in a way NOT intended by the Founding Fathers when they chose the phrase “natural born,” those later statutes are unconstitutional with regard only to whether they determine eligibility to be president. You can’t cite an unconstitutional subsequent statute as an authority to define an original Constitutional (by definition) phrase.
I did not say the Supreme Court was pure and omniscient. Indeed, I said four of them were political hacks and Roberts is some sort of popularity seeker. But in matters like defining “natural born” they are “infallible” in the same sense as the Pope. That does not mean they are perfect, only that their decision, however flawed if it is flawed, IS the damned law until changed by a subsequent amendment or Supreme Court decision.
Randy Harrold Yes and English common law is pretty clear on the subject. Also. A Supreme Court decision is not the "damned" law if they have not yet accepted a case. They may not. They could say it's a political question and deny cert. Here is a nice law review article on the subject. http://harvardlawreview.org/.../on-the-meaning-of.../
John T. Reed The Supremes not accepting a case means that lower court decision is controlling until such time as the Supremes accept another case on the same point. I have not predicted a Supreme decision nor have I predicted that they would grant cert. I’m just saying until they do, no one can say Cruz is eligible.
The phrase “ English common law is pretty clear on the subject” sounds odd to me. First, we’re talking about English common law as it stood in 1789.
Also, it may be that the Founding Fathers did not like that particular aspect of common law. There certainly were a hell of a lot of other English laws that they did not like. And how could there be an English common law case on point when the matter of defining different kinds of citizens for a brand new country was at bar? No English court ever heard such a case.
The word controlling applies to the Constitution and to Supreme Court decisions, but English common law is only possibly pertinent to a search for Congressional intent, not controlling like a U.S. Constitutional provision or Supreme Court decision. Even unanimous English common law on the definition of the phrase might be irrelevant if the Founders hated that particular line of cases.
John T. Reed